United States v. Hayman: Plain Error, Sentencing Explanations, and Intellectual Disability in Murder-for-Hire Cases

I. Introduction

The Tenth Circuit’s unpublished decision in United States v. Hayman, No. 24‑2136 (10th Cir. Dec. 17, 2025), addresses three interlocking sentencing issues in the context of a murder‑for‑hire prosecution involving a defendant with an intellectual disability:

• How the Sentencing Guidelines apply to 18 U.S.C. § 1958 (use of interstate commerce facilities in the commission of murder‑for‑hire), particularly the cross‑reference from U.S.S.G. § 2E1.4 to § 2A1.5 (solicitation to commit murder);
• When a defendant’s failure (or apparent agreement) at sentencing to challenge the sufficiency of the court’s explanation is treated as waiver (no review) versus forfeiture (plain‑error review); and
• How far a district court must go in explicitly addressing a defendant’s intellectual disability and other mitigation when imposing a within‑Guidelines, statutory‑maximum sentence.

Although designated as an “order and judgment” without precedential effect (except under law of the case, res judicata, and collateral estoppel), the decision is important for its persuasive analysis. The panel:

• Holds there is no “plain” error in using § 2A1.5 via § 2E1.4’s cross‑reference to calculate the base offense level for § 1958; and
• Clarifies how defense counsel’s “no objection” at sentencing will often be treated merely as a forfeiture (allowing plain-error review) rather than a true waiver; and
• Reaffirms that a sentencing court imposing a within‑Guidelines sentence need not explicitly reject each mitigating argument—even where the mitigation is a substantial intellectual disability—so long as the record shows consideration of the § 3553(a) factors and the arguments overall.

The case arises from a failed attempt by defendant‑appellant Leif Everett Hayman, an intellectually disabled transgender woman, to hire a “hitman” via the parody website rentahitman.com to kill her girlfriend’s mother and, if necessary, harm a caregiver. After a competency process and a guilty plea to one count under 18 U.S.C. § 1958(a), the district court imposed a 120‑month sentence—the statutory maximum and effective Guidelines sentence. On appeal, Hayman challenged both the procedural and substantive reasonableness of her sentence. The Tenth Circuit affirmed.

II. Summary of the Opinion

A. Factual Overview

Key facts:

• Hayman, who has a mild intellectual developmental disorder and multiple other conditions (including cerebral palsy, anxiety disorder, antisocial disorder, and gender dysphoria), lived in an assisted‑care facility with full‑time caregivers.
• She was in a relationship with “Danielle,” a young woman with intellectual disability and autism. Danielle’s mother and guardian (“P.H.”) viewed Hayman as “possessive,” “unhinged,” and “manipulative.”
• After an incident in which Danielle attempted suicide “to avoid running away with [Hayman],” P.H. confronted Hayman and her caretakers about the relationship, leading to significant conflict.
• Hayman repeatedly contacted rentahitman.com, sending multiple messages over weeks with P.H.’s identifying information, asking to have her “hurt” and later explicitly “killed,” and threatening to do it herself if they would not.
• An ATF undercover agent posed as a hitman, confirmed Hayman’s intent to have P.H. “gone off this earth,” discussed methods (including gun, knives, bat, rock), and negotiated a payment of $200 (to be sourced from Danielle).
• Hayman also suggested harming or at least intimidating her caregiver so that he would not report P.H.’s disappearance. A plan was set to meet and carry out the murder. On the appointed day, surveillance and an interaction with Hayman and her caretaker led to her arrest.

The Presentence Report (PSR) detailed a troubling history of violent ideation:

• Earlier plans documented in notes to kill her adoptive mother and sister, poison caregivers by “cheeking” medications and putting them in their food, and kidnap a twelve‑year‑old child she had a “crush” on—using a baseball bat if anyone interfered.
• Prior attempts to flee to Mexico, including disabling alarms at her group home.

B. Procedural History

• Competency: Defense expert Dr. Kaufman opined Hayman was not competent to stand trial. After BOP treatment and evaluation, Dr. Abdelaal concluded she was competent “with some support.” Following a competency hearing at which both testified, the district court found Hayman competent.
• Guidelines:
  • The PSR applied U.S.S.G. § 2E1.4 (use of interstate commerce facilities in the commission of murder‑for‑hire). That guideline provides a base offense level of 32 or the level for the “underlying unlawful conduct,” whichever is greater.
  • Identifying “solicitation to commit murder” as the underlying conduct, the PSR cross‑referenced § 2A1.5. That guideline yielded a base offense level of 33 plus a 4‑level enhancement because the offense “involved the offer or the receipt of anything of pecuniary value” for the murder, for a subtotal of 37.
  • After a 3‑level reduction for acceptance of responsibility, the total offense level was 34, criminal history category I, for a range of 151–188 months. Because 18 U.S.C. § 1958(a) caps punishment at 10 years, the effective Guidelines sentence was 120 months.
• Sentencing:
  • Defense requested 30 months, arguing Hayman’s plan was “simple‑minded,” “doomed to fail,” akin to a child’s fantasy, and that her disability, lack of criminal history, and controlled living environment mitigated risk.
  • The Government sought the Guidelines 120‑month sentence, emphasizing dangerousness, impulsive problem‑solving, and a pattern of violent ideation.
  • The district court adopted the PSR, walked through the § 3553(a) factors, highlighted the seriousness of the offense and prior violent planning (including child‑kidnapping plans), and imposed 120 months—the statutory maximum and Guidelines sentence—along with a recommendation for medical treatment in BOP.
  • After pronouncing sentence, the court asked: “Does the defendant have an objection to the adequacy of the explanation for any portion of the sentencing?” Defense counsel replied: “Your Honor, I do not object to the adequacy of your explanations. If I may, though, I would respectfully object to the 120‑month sentence as being the statutory maximum.”

C. Issues on Appeal and Holding

Hayman raised:

1. Procedural reasonableness:
   • (a) The district court miscalculated the Guidelines by improperly using § 2A1.5 as the “underlying unlawful conduct” for § 2E1.4; and
   • (b) The court inadequately explained its rejection of her downward‑variance request, especially in light of her intellectual disability.
2. Substantive reasonableness: Imposing the statutory maximum on a defendant with her cognitive deficits was irrational and excessively harsh.

The Tenth Circuit:

• Affirmed the sentence in all respects;
• Held there was no plain error in the Guidelines calculation;
• Treated defense counsel’s “no objection” to the explanation as forfeiture (allowing plain‑error review), not waiver; and
• Concluded the sentencing explanation and the ultimate 120‑month term were both reasonable.

III. Analysis

A. Precedents and Authorities Cited

1. General Sentencing and Reasonableness Framework

• Gall v. United States, 552 U.S. 38 (2007)
  • Provides the foundational framework for appellate review of federal sentencing.
  • Identifies typical procedural errors: failure to calculate Guidelines, treating Guidelines as mandatory, ignoring § 3553(a), relying on clearly erroneous facts, or failing to adequately explain the chosen sentence.
  • Hayman: Gall’s list is used to frame what “procedural reasonableness” means.
• United States v. Jackson, 82 F.4th 943 (10th Cir. 2023)
  • Describes reasonableness review as a “two‑step process” (procedural and substantive).
  • Hayman: cited for that two‑step approach.
• United States v. Miller, 978 F.3d 746 (10th Cir. 2020)
  • Sets out abuse‑of‑discretion standard for substantive reasonableness and reaffirms that appellate courts do not reweigh § 3553(a) factors.
  • Emphasizes the presumption that a within‑Guidelines sentence is reasonable and the limited role of appellate courts.
• United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012)
  • Defines abuse of discretion in sentencing as a decision that is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
• United States v. McBride, 633 F.3d 1229 (10th Cir. 2011)
  • Places burden on defendant to show that the sentence falls outside the range of reasonable outcomes.
• United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)
  • Observes that there is no algorithm for weighing § 3553(a) factors; the district court has broad discretion in how to balance them.

2. Guidelines Cross‑Reference and § 1958

• 18 U.S.C. § 1958(a)
  • Makes it a crime to use any facility of interstate or foreign commerce with the intent that a murder be committed “as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value.”
  • In the Tenth Circuit: elements articulated in United States v. Robertson, 473 F.3d 1289 (10th Cir. 2007): use of interstate facility, intent that a murder be committed, and pecuniary consideration.
• United States v. Wicklund, 114 F.3d 151 (10th Cir. 1997)
  • Interprets the “consideration” element of § 1958 as requiring either payment now or a promise/agreement to pay in the future.
  • Hayman uses Wicklund as the textual anchor for the defendant’s argument that every § 1958 violation necessarily involves solicitation.
• U.S.S.G. § 2E1.4 (Use of Interstate Commerce Facilities in the Commission of Murder‑for‑Hire)
  • Base offense level is 32 or “the offense level applicable to the underlying unlawful conduct,” whichever is greater.
• U.S.S.G. § 2A1.5 (Conspiracy or Solicitation to Commit Murder)
  • Base offense level 33, plus 4 levels if the offense involved the offer or receipt of anything of pecuniary value for undertaking the murder.
  • Used here via the § 2E1.4 cross‑reference as the “underlying unlawful conduct.”
• United States v. Summers, 506 F. Supp. 2d 686 (D.N.M. 2007)
  • A district court case (within the Tenth Circuit) cited for the proposition that the plain text of the Guidelines supports using § 2A1.5 to supply the offense level in § 1958 cases where the underlying conduct is solicitation.
• Inter‑circuit decisions approving § 2A1.5 for § 1958
  • United States v. Cordero, 973 F.3d 603, 625 (6th Cir. 2020): notes that other circuits have “unanimously approved” using § 2A1.5(a) as the base offense level for § 1958 convictions.
  • United States v. Lisyansky, 806 F.3d 706, 710 (2d Cir. 2015), and United States v. Smith, 755 F.3d 645, 647 (8th Cir. 2014): both hold that a § 1958 violation can be complete without a full solicitation, undermining the defendant’s redundancy argument.

3. Plain Error and Preservation

• United States v. Buonocore, 416 F.3d 1124 (10th Cir. 2005), and United States v. Berryhill, 140 F.4th 1287 (10th Cir. 2025)
  • Set forth the four‑part plain‑error standard: (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
• United States v. Silva, 981 F.3d 794 (10th Cir. 2020)
  • Clarifies that an error is “plain” only if it is clear or obvious under current law, either because the Guidelines clearly support defendant’s reading or because precedent directly on point exists.
• United States v. Smith, 815 F.3d 671 (10th Cir. 2016)
  • Explains that plainness can also be shown by a consensus of other circuits.
• United States v. Olano, 507 U.S. 725 (1993), and Johnson v. Zerbst, 304 U.S. 458 (1938)
  • Provide the classic definition of waiver as the “intentional relinquishment or abandonment of a known right.”
• United States v. Malone, 937 F.3d 1325 (10th Cir. 2019), and In re Syngenta AG MIR 162 Corn Litig., 61 F.4th 1126 (10th Cir. 2023)
  • Delineate the difference between forfeiture (neglect/failure to assert) and waiver (deliberate abandonment).
• United States v. Carrasco‑Salazar, 494 F.3d 1270 (10th Cir. 2007)
  • Held that a defendant’s affirmative statement that prior PSR objections were “resolved” constituted knowing waiver, where the court directly raised those prior objections and the defendant expressly withdrew them.
• United States v. Zubia‑Torres, 550 F.3d 1202 (10th Cir. 2008)
  • A critical case here. The court treated defense counsel’s statement that “the offense was correctly calculated” as a forfeiture, not waiver, because there was no evidence counsel had identified the specific unraised issue and intentionally abandoned it.
  • Also emphasized that such a statement, made while steering the court toward another argument, is often just a way of saying: “We’re not pressing that calculation issue; our real concern is elsewhere.”

4. Sentencing Explanations and Variances

• United States v. Nunez‑Carranza, 83 F.4th 1213 (10th Cir. 2023)
  • Clarifies what is required when a court rejects a non‑frivolous downward‑variance argument, especially in the context of a within‑Guidelines sentence.
  • Holds that a court satisfies procedural requirements if the record shows it:
    1. Entertained the defendant’s argument for a downward variance;
    2. Considered the § 3553(a) factors (including the Guidelines range); and
    3. Concluded that a within‑Guidelines sentence is appropriate in light of those factors.
• United States v. Wireman, 849 F.3d 956 (10th Cir. 2017)
  • Reiterates that a district court imposing a within‑Guidelines sentence need not address every argument head‑on.
  • But when a court varies upward from the Guidelines, the explanation burden is higher; the court is generally expected to specifically address and reject the defendant’s main arguments for leniency.
• United States v. Colón‑Cordero, 91 F.4th 41 (1st Cir. 2024)
  • First Circuit case heavily discussed by Hayman. There, the district court imposed a substantial upward variance and offered only a terse, generic statement that the parties’ proposed sentences did not satisfy deterrence, seriousness, etc., without connecting that assessment to the defendant’s individual circumstances, including significant intellectual disability.
  • The First Circuit reversed, stressing that the record gave no basis to tell whether or how the sentencing court had considered the defendant’s intellectual disability.

B. Legal Reasoning in Detail

1. Guidelines Calculation and Plain Error

a. The Defendant’s Redundancy Argument

Hayman argued that using U.S.S.G. § 2A1.5 (solicitation to commit murder) via § 2E1.4’s cross‑reference as the “underlying unlawful conduct” for her § 1958 offense was erroneous. Her theory:

1. Section 1958 requires, as an element, that the defendant act “as consideration for” payment or a promise/agreements to pay (citing Wicklund).
2. But solicitation to commit murder, by definition, also requires an offer or agreement to pay someone to kill.
3. Therefore, every violation of § 1958 necessarily involves solicitation to murder.
4. If courts always treat the “underlying unlawful conduct” under § 2E1.4 as solicitation (and hence always apply § 2A1.5), then § 2E1.4 would effectively never use its default base offense level of 32. This would render § 2E1.4’s structure superfluous, violating canons against redundancy.
5. Accordingly, she argued, the “underlying unlawful conduct” must mean something more than the conduct necessarily involved in every § 1958 offense, so the court should have simply applied the 32‑point base offense level in § 2E1.4(a)(1), not the higher 37‑level result from § 2A1.5.

b. The Government’s Response and the Court’s Approach

The Government argued that § 1958 does not always entail completed solicitation. Under its reading:

• The crime is complete when the defendant uses an interstate facility with the requisite intent and for pecuniary consideration; an actual agreement with a hitman, or a successful solicitation, is not required.
• Thus, some § 1958 violations may not constitute solicitation, in which case the cross‑reference to § 2A1.5 will not always apply. No redundancy problem occurs.

Critically, the Tenth Circuit declined to decide definitively which interpretation of § 1958 is correct. Instead, because Hayman did not object below, the court applied plain‑error review and focused on the second prong: was any error “plain”?

c. Why Any Error Was Not “Plain”

Under Silva and Smith, an error is “plain” only if:

• The Guidelines clearly and obviously support the defendant’s reading; or
• Binding precedent from the Supreme Court or Tenth Circuit, or a strong consensus among other circuits, compels that reading.

The panel concluded Hayman could not show plain error because:

1. Guideline text – The “plain text” of § 2E1.4(a)(2) reasonably supports cross‑referencing § 2A1.5 when the § 1958 conduct amounts to solicitation. The district court’s approach was at least a permissible interpretation.
2. Absence of controlling precedent – The Tenth Circuit had “yet to directly address” whether applying § 2A1.5 is correct (Hayman explicitly conceded this).
3. Other circuits’ decisions – Far from supporting Hayman, the weight of other circuits’ authority favors the Government’s position:
   • The Sixth Circuit (in Cordero) described other circuits as “unanimously approv[ing]” the use of § 2A1.5 for § 1958 offenses.
   • The Second and Eighth Circuits (Lisyansky, Smith) hold that § 1958 can be violated without solicitation, thus directly undermining the idea that all § 1958 conduct is necessarily solicitation.

Given this landscape, even if one could argue that the better reading of § 1958 or § 2E1.4 would have led to a different calculation, it was not “clear or obvious” that the district court erred. Therefore, Hayman failed at the second step of the plain‑error test, and the Tenth Circuit did not need to consider whether any alleged error affected her substantial rights or the fairness of the proceedings.

Key takeaway: In the Tenth Circuit, using § 2A1.5 to calculate the base offense level for a § 1958 conviction via § 2E1.4(a)(2) is, at minimum, a reasonable and not plainly erroneous application of the Guidelines, particularly where the underlying conduct is straightforward murder‑for‑hire solicitation with an agreed payment.

2. Waiver vs. Forfeiture of the Sentencing‑Explanation Challenge

a. The Government’s Waiver Argument

At sentencing, after the district court explained its sentence, the judge asked:

Does the defendant have an objection to the adequacy of the explanation for any portion of the sentencing?

Defense counsel responded:

Your Honor, I do not object to the adequacy of your explanations. If I may, though, I would respectfully object to the 120‑month sentence as being the statutory maximum.

The Government argued this constituted waiver of any challenge to the adequacy of the court’s explanation, meaning the issue was not merely unpreserved but unreviewable.

b. The Court’s Application of Zubia‑Torres

The Tenth Circuit treated this as a forfeiture instead, relying on Zubia‑Torres:

• Waiver demands evidence that the party deliberately considered the issue and made a conscious choice to abandon it.
• An affirmative “no objection” statement is not always conclusive evidence of waiver; the context matters.

In Zubia‑Torres, defense counsel said the offense level was “correctly calculated,” but the Tenth Circuit held there was only forfeiture because:

• There was no sign counsel had identified the specific enhancement issue now being appealed; and
• The statement came in the context of steering the court to another argument (Booker issues), not of carefully retracting a previously articulated objection.

Applying the same logic here, the panel emphasized:

• Nothing in the record suggested defense counsel knew of, thought through, and intentionally abandoned the specific argument advanced on appeal—namely, that the explanation was inadequate for failing to grapple with Hayman’s intellectual disability and mitigation claims.
• Like in Zubia‑Torres, counsel’s response came as he pivoted to his “primary argument”: that sentencing at the statutory maximum was itself improper.

The court concluded there was no “conscious or intentional” abandonment of the argument that the explanation was insufficient on the particular ground raised on appeal. Thus:

• The failure to object was a forfeiture, not a waiver; and
• The adequacy‑of‑explanation issue was reviewable under plain‑error standards.

Practical implication: Defense counsel’s generic assurances to the court that its explanation is “adequate,” particularly when immediately followed by a shift to another argument, will often be treated as forfeiture rather than full waiver in the Tenth Circuit—preserving at least plain‑error review.

3. Adequacy of the Sentencing Explanation

Hayman made two related procedural arguments:

1. The district court did not adequately explain why it rejected her request for a substantial downward variance; and
2. The court erred by failing to expressly mention or meaningfully engage with her intellectual disability, which was the centerpiece of her mitigation case.

a. Failure to Explain Rejection of the Downward Variance

The Tenth Circuit applied the framework from Nunez‑Carranza. A sentencing court imposing a within‑Guidelines sentence complies with its explanatory duty when:

1. It has clearly entertained the defendant’s argument for a downward variance;
2. It has considered the § 3553(a) factors (including the Guidelines); and
3. It has concluded that a within‑Guidelines sentence is appropriate in light of those factors.

The panel held all three prongs were satisfied:

• The district court explicitly acknowledged considering “all available sentencing options,” including “no more time in custody” as defense requested, showing it entertained the variance request.
• The court stated it had considered the § 3553(a) factors and then discussed several of them in some detail:
  • Nature and circumstances of the offense: “quite serious” attempt to have someone killed.
  • History and characteristics: focus on Hayman’s repeated prior violent planning and threats, including plans to kill relatives and caregivers and kidnap a child with a baseball bat as backup.
  • Seriousness, respect for law, just punishment: emphasized the gravity of murder‑for‑hire conduct.
  • Deterrence and public protection: concerned about her pattern of “very serious actions” in this case and in the past.
  • Need for training and medical care: the court expressly recommended placement at a BOP medical facility in Fort Worth to meet her medical and treatment needs.
• After that discussion, the court concluded that 120 months was “sufficient but not greater than necessary” and expressly found a Guidelines sentence “appropriate under the § 3553(a) factors.”

Under Nunez‑Carranza and Wireman, the district court was not required to respond point‑by‑point to every variance argument; it was enough that the record as a whole showed explicit consideration of § 3553(a) and rejection of the requested downward variance. No procedural error was found at this step.

b. Failure to Expressly Address Intellectual Disability

Hayman’s more nuanced argument invoked Colón‑Cordero (First Circuit). She claimed that the court’s failure to mention her intellectual disability in its explanation rendered the sentence procedurally defective, particularly given that the disability was her “dominant” mitigation argument.

The Tenth Circuit distinguished Colón‑Cordero on several grounds:

1. Type of sentence:
   • In Colón‑Cordero, the district court imposed a significant upward variance, which triggers a higher duty of explanation (and, in Tenth Circuit practice, usually a specific discussion and rejection of the defendant’s key mitigation points).
   • Here, the court imposed a within‑Guidelines sentence, where a more modest explanation suffices and the presumption of reasonableness applies.
2. Depth of record explanation:
   • In Colón‑Cordero, the district court’s explanation was extremely sparse—largely generic statements about seriousness and deterrence, without linking those concepts to the defendant’s individual characteristics or addressing the intellectual disability at all. The First Circuit found it impossible to tell whether the court had actually made an “individualized assessment.”
   • Here, by contrast, the district court actively walked through the § 3553(a) factors, grounded its concern in very specific, individualized facts (prior violent plans, history of threatening and planning harm, attempted child kidnapping), and connected those facts to the need for deterrence and protection of the public.
3. Inference from the record:
   • The First Circuit emphasized that sometimes appellate courts can infer a court’s reasoning from the record, but in Colón‑Cordero there was simply not enough to infer anything about the treatment of intellectual disability.
   • In Hayman’s case, however, the Tenth Circuit found there was ample basis to infer the district court had considered intellectual disability:
     • The judge had presided over a detailed competency proceeding, hearing expert testimony on Hayman’s cognitive limitations and their practical effects.
     • The mitigation arguments at sentencing were all framed through her disability (e.g., her “childlike” planning, simple‑mindedness of the murder plot, and the suggestion that 24/7 care in an assisted living facility mitigated her danger).
     • The judge expressly gave weight to Hayman’s need for medical care and specialized placement, recommending BOP medical facility placement.

Given these facts, the Tenth Circuit concluded that the record did not show the court “completely ignored” the intellectual disability. Rather, the most natural inference was that the court considered it but gave it less mitigating weight than Hayman had requested, in light of her demonstrated history and future dangerousness. That balancing does not constitute procedural error.

Bottom line: In a within‑Guidelines case, the Tenth Circuit will not require a district judge to utter the words “intellectual disability” on the record so long as the overall sentencing discussion, considered against the background of the case, makes it clear the court understood the defendant’s limitations and nonetheless found a Guidelines sentence appropriate.

4. Substantive Reasonableness and Intellectual Disability

On substantive review, the court began with the strong presumption of reasonableness for a within‑Guidelines sentence. Here, Guidelines and statutory maximum coincided at 120 months.

Hayman’s substantive arguments largely repackaged her mitigation narrative:

• Her murder‑for‑hire plan was “doomed to fail,” unsophisticated, and more akin to a “child’s plan” than a hardened criminal enterprise.
• Her prior violent planning did not result in actual physical harm, suggesting reduced culpability or lesser dangerousness.
• Her intellectual disability produced “profound impairment” in judgment and critical thinking, decreasing her blameworthiness and risk.
• Upon release, robust conditions (return to assisted living, 24/7 care, restricted internet access) would protect the public without requiring a decade‑long sentence.

The Tenth Circuit emphasized two principles:

1. No reweighing of § 3553(a): The appellate court does not decide how it would have weighed intellectual disability versus dangerousness; it only asks whether the district court’s weighing produced a sentence within a reasonable range of choices.
2. Range of rational outcomes: The district court’s concerns about:
   • the repeated, serious plans to kill various people (family members, caregivers, Danielle’s mother);
   • the inclusion of a child‑kidnapping plan with threats of lethal force; and
   • the escalation from fantasy to action (here, active steps to hire a hitman and set a date and place)
   allowed it to rationally prioritize public protection and deterrence over mitigation based on intellectual disability.

The panel held that the sentence was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” A reasonable sentencer could conclude that, despite Hayman’s cognitive limitations, her prolonged engagement with violent plans and her willingness to operationalize those plans made a 10‑year sentence appropriate.

Key doctrinal point: Intellectual disability can be powerful mitigation, but it does not automatically render a statutory‑maximum, within‑Guidelines sentence substantively unreasonable when the record supports a serious and ongoing danger to others.

IV. Complex Concepts Simplified

1. Plain Error vs. Harmless Error vs. De Novo Review

• De novo review: If the defendant objected clearly in the district court, the appellate court typically reviews the issue fresh, with no deference.
• Plain error (as in Hayman’s Guidelines challenge and explanation challenge):
  • Applies when the defendant did not make a timely objection below.
  • Requires the defendant to show: (1) error; (2) that is “plain” (clear or obvious under current law); (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings.
  • If the law is unsettled or other circuits disagree, the error will typically not be “plain.”
• Harmless error: Used when there was an objection below but the Government must show that the error did not affect the outcome.

2. Waiver vs. Forfeiture

• Forfeiture: Failure to assert a claim or objection out of neglect or oversight. The appellate court may still review the issue for plain error.
• Waiver: A knowing and intentional decision to give up a right or argument. If something is waived, it is usually unreviewable on appeal.
• Hayman is a textbook example of the Tenth Circuit requiring evidence of a conscious decision to abandon an argument before finding waiver. A rote “no objection” is often insufficient by itself.

3. Guideline Cross‑References (Using § 2A1.5 via § 2E1.4)

Some Guidelines, like § 2E1.4, do not directly set the final offense level. Instead, they:

• Set a default base offense level; and
• Provide that, if there is another guideline describing the “underlying unlawful conduct,” the sentencing court must use that other guideline if it yields a higher offense level.

Here:

• § 2E1.4 covers the use of interstate commerce facilities in murder‑for‑hire and gives a default base level of 32.
• But because the “underlying unlawful conduct” was solicitation to commit murder, the court looked to § 2A1.5 (solicitation) and, because it produced a higher offense level (37), applied that instead.

4. Murder‑for‑Hire vs. Solicitation

• 18 U.S.C. § 1958(a) (murder‑for‑hire):
  • Focus: use of an interstate facility (phone, internet, etc.) with intent that a murder be committed for pay or a promise of payment.
  • Debated question: Must there be an actual offer/acceptance, or is intent plus use of the interstate facility enough?
• Solicitation to commit murder:
  • A crime (under federal or state law or under Guidelines treatment) where one person actively uses words or conduct to persuade another to commit a murder, typically coupled with an offer of payment or other inducement.
  • While closely related to § 1958, it is conceptually distinct: some uses of interstate facilities for murder‑for‑hire may be preparatory or may not result in any actual solicitation or agreement.

5. Intellectual Disability vs. Competency vs. Criminal Responsibility

• Intellectual disability:
  • A clinical condition involving significantly subaverage intellectual functioning with deficits in adaptive behavior.
  • Relevant to sentencing as mitigation (reduced culpability, lower risk, diminished ability to plan).
• Competency to stand trial:
  • A legal standard: whether the defendant has a rational and factual understanding of the proceedings and can assist counsel.
  • In Hayman, the court found her competent “with some support,” despite intellectual disability.
• Criminal responsibility (insanity, etc.):
  • A separate question of whether, at the time of the offense, the defendant was so mentally impaired as to lack the capacity to understand the wrongfulness of her acts or conform her conduct to the law.
  • Hayman pleaded guilty; the case is about sentencing, not legal insanity.

V. Impact and Broader Significance

1. Sentencing in § 1958 Cases Within the Tenth Circuit

While not binding, Hayman is likely to be cited as persuasive authority to:

• Support use of § 2A1.5 for § 1958 murder‑for‑hire offenses when the underlying conduct is solicitation with payment or promise of payment;
• Undermine arguments that such use is clearly erroneous or exceeds what the Guidelines permit; and
• Signal that defendants raising novel Guidelines‑interpretation arguments for the first time on appeal face a high bar under plain‑error review, particularly when other circuits have adopted the opposite reading.

2. Defense Counsel Strategy at Sentencing

The waiver/forfeiture analysis has practical implications:

• Defense lawyers should be cautious about broadly stating “no objection” to explanations or calculations without having thoroughly analyzed possible appellate issues.
• At the same time, Hayman (following Zubia‑Torres) gives some breathing room: not every “no objection” will be deemed a knowing waiver, especially if it appears to be a perfunctory statement made while pivoting to a different issue.
• To preserve issues fully for de novo review—and avoid plain‑error’s demanding standard—counsel should explicitly assert any legal objections (e.g., guideline interpretation, inadequacy of explanation) before the court pronounces sentence or immediately thereafter when given the opportunity.

3. Intellectual Disability and Sentencing Explanations

The case reflects a tension increasingly visible in federal sentencing:

• On one hand, intellectual disability and other serious mental impairments are powerful mitigating factors and, after cases like Atkins v. Virginia and the broader Eighth Amendment jurisprudence, are often central to arguments for substantial leniency.
• On the other hand, appellate courts—especially when reviewing within‑Guidelines sentences—are reluctant to require district courts to deliver lengthy, individualized discussions of every mitigating characteristic, absent a significant variance or an extremely sparse record.

Hayman suggests that, in the Tenth Circuit:

• Where a sentencing judge has obviously engaged with the defendant’s mental status (e.g., through a competency hearing and mitigation arguments) and explicitly considers treatment and placement, the court does not have to articulate a detailed, separate analysis of disability in its § 3553(a) discussion;
• The existence of intellectual disability does not, by itself, make a statutory‑maximum, within‑Guidelines sentence substantively unreasonable—especially when the record supports a pattern of dangerous, escalating conduct; and
• First Circuit decisions like Colón‑Cordero will be distinguished where there is not an upward variance and the record as a whole shows more engagement with the individual’s characteristics.

4. Strengthening the Presumption of Reasonableness for Guidelines Sentences

The opinion reinforces a familiar but important message: when the Guidelines range and the statutory maximum coincide, a sentence at that maximum is still entitled to the presumption of reasonableness, provided the Guidelines were properly (or at least not plainly improperly) calculated.

For future cases:

• Defendants challenging a statutory‑maximum, within‑Guidelines sentence will likely need extraordinary facts or clear legal error to succeed;
• Arguments that the plan was amateurish or unlikely to succeed, standing alone, are unlikely to carry the day where the record shows genuine intent and affirmative steps toward harmful conduct; and
• Sentencing judges who thoroughly walk through § 3553(a) and explicitly tie facts to factors will have their discretion strongly protected on appeal.

VI. Conclusion

United States v. Hayman sits at the intersection of complex sentencing law, intellectual disability, and murder‑for‑hire offenses. Its main contributions, albeit nonprecedential, are:

• Confirming that it is not plain error—and is well‑supported by other circuits—to apply U.S.S.G. § 2A1.5 via § 2E1.4 to calculate the offense level for § 1958 murder‑for‑hire offenses where the conduct is solicitation with pecuniary consideration;
• Clarifying, through application of Zubia‑Torres, that a defense lawyer’s on‑the‑spot assurance of “no objection” to the court’s explanation will often constitute forfeiture (reviewable for plain error), not true waiver, absent evidence of a deliberate decision to abandon the specific argument later raised on appeal;
• Reaffirming the relatively modest explanatory burden on district courts imposing within‑Guidelines sentences: the court must entertain the defendant’s variance arguments, consider § 3553(a), and explain why a Guidelines sentence suffices, but need not explicitly address every mitigating factor, including intellectual disability, so long as the record shows those factors were understood and implicitly weighed; and
• Underscoring that intellectual disability does not categorically preclude a statutory‑maximum, within‑Guidelines sentence where the defendant’s record reveals a longstanding pattern of violent ideation and concrete steps toward lethal harm.

For practitioners, Hayman is a reminder that:

• Preserving sentencing issues requires explicit objections in the district court;
• Novel Guidelines arguments face steep odds under plain‑error review, especially when the weight of other circuits cuts the other way; and
• Even compelling mitigation like intellectual disability must be framed against a concrete analysis of dangerousness and the statutory sentencing purposes if it is to justify a significant reduction from the Guidelines range.